917 F.3d 109
2d Cir.2019Background
- Donahue Francis (Black) rented an apartment at Kings Park Manor (KPM). His neighbor, Raymond Endres, repeatedly directed racially hostile slurs, threats, and harassment at Francis from Feb–Sept 2012, including photographing Francis's apartment and threatening violence.
- Francis reported Endres to police multiple times; police investigated, warned Endres, and later arrested him; Francis also sent three written complaints to KPM and informed KPM of the police involvement. KPM allegedly took no effective remedial action and told its manager not to get involved.
- Endres’ lease expired in Jan 2013 and he moved out; he later pleaded guilty to harassment and an order of protection issued.
- Francis sued KPM, its manager, and Endres under the Fair Housing Act (FHA) §§ 3604/3617, 42 U.S.C. §§ 1981 and 1982, New York Human Rights Law § 296, and tort claims. The district court dismissed most claims; default judgment was entered against Endres. Francis appealed.
- The Second Circuit considered HUD’s 2016 rule (formalizing HUD’s view that landlords can be liable for failing to address tenant-on-tenant harassment) and held that post-acquisition hostile-housing-environment claims under §3604(b) and liability under §3617 are cognizable in limited circumstances where the housing provider knew or should have known and had the power to correct the discriminatory conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §3604(b) reaches post-acquisition discrimination (hostile housing environment) | Francis: §3604(b) covers "terms, conditions, or privileges" and continuing services, so post-acquisition hostile-environment claims are cognizable | KPM: §3604(b) targets sale/rental decisions; it does not create a duty to police other tenants' conduct after acquisition | Held: §3604(b) can reach certain post-acquisition conduct (hostile housing environment) when it interferes with use/enjoyment or services/facilities connected to the dwelling |
| Whether a landlord can be liable for failing to address tenant-on-tenant racial harassment | Francis: landlord liability exists where landlord knew/should have known and had power to correct but failed to take prompt action | KPM: FHA does not impose third-party policing duties on landlords; HUD rule overbroad/retroactive; landlords lack control akin to employers | Held: A landlord may be liable under FHA in limited circumstances: (1) hostile environment caused by third party; (2) landlord knew/should have known; (3) landlord failed to take prompt action while having power to correct |
| Whether HUD’s 2016 Rule can inform interpretation / is retroactive | Francis: HUD’s Rule codifies longstanding view and is interpretive; it clarifies existing FHA coverage | KPM: Rule is legislative, was promulgated after events, and cannot be applied retroactively; HUD misreads statute | Held: Court affords HUD’s interpretive rule significant persuasive weight (Skidmore), treats it as interpretive (not retroactive) in construing FHA here |
| Whether deliberate indifference suffices for §§1981/1982 intent element | Francis: deliberate indifference that facilitates discrimination can satisfy intent for §§1981/1982 | KPM: §§1981/1982 require purposeful racial animus, not mere indifference | Held: Deliberate indifference can meet intent element if it reflects an intent that discrimination occur; dismissal of §§1981/1982 reversed for further factual development |
Key Cases Cited
- City of Edmonds v. Oxford House, 514 U.S. 725 (1995) (FHA language has broad compass informing generous construction)
- Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) (FHA interpreted broadly; standing principles)
- Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009) (recognizes post-acquisition hostile-environment FHA claims and landlord liability in some circumstances)
- Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690 (9th Cir. 2009) (reads "privileges" to implicate continuing rights and post-acquisition protections)
- Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856 (7th Cir. 2018) (holds FHA can create landlord liability for failing to address tenant-on-tenant harassment when landlord had notice and control)
- Meyer v. Holley, 537 U.S. 280 (2003) (FHA remedies are tort-like; courts should consider traditional tort rules)
- Inclusive Cmtys. Project v. Texas Dep't of Hous. & Cmty. Affairs, 135 S. Ct. 2507 (2015) (supreme-court guidance using Title VII and other civil-rights statutes to inform FHA interpretation)